county attorney himself, and there was no law for taxing these fees for the benefit of, and paying them into, the county treasury; for section 1 of the act of March 6, 1891, provides for the payment into the county treasury of the fees collected by sheriffs, treasurers, and other officers, naming them, but the section omits to mention county attorneys. Therefore this seems to be the result: As the fees mentioned in section 9, Act March 14, 1889, are collectible and payable neither to the county attorney, nor to the county treasurer, they are not taxable against the defendant. The judgment of the district court is affirmed. among the members of the jury as to the verdict which should be rendered in said cause, and a proposition was thereupon made and agreed upon by the members of the jury that each member should indicate the amount for which he thought the plaintiff should recover, if at all, and that the sums thus indicated should be added together, and the sum so found should thereupon be divided by twelve, and the quotient thus found should be and constitute the amount in which plaintiff should recover; and said jurors agreed to abide by the result arrived at in this manner. That in this manner the agreement upon a verdict was reached, and the verdict of $176 ($167.63) The CHIEF JUSTICE and HARWOOD, arrived at. Affiants further state that they, J., concur. GORDON v. TREVARTHAN. (Supreme Court of Montana. Oct. 2, 1893.) NEW TRIAL-QUOTIENT Verdict. Code Civil Proc. 296, subd. 2, provides for a new trial whenever one or more of the jurors shall have been induced to assent to a verdict by a resort to the determination of chance, and that such misconduct may be shown by affidavits of the jurors. Held, that a verdict will be set aside on an affidavit of a juror that an agreement was entered into by the jury to arrive at the result by a "quotient verdict," and that he was induced to assent to the verdict because of the agreement so made and carried out, though the affidavits of other jurors are that the quotient so arrived at was used as a basis of discussion as to the amount of the verdict. Appeal from district court, Silver Bow county; J. J. McHatton, Judge. Action by John A. Gordon against William Trevarthan. From an order granting a new trial, plaintiff appeals. Order affirmed. Statement of the case by the justice deHvering the opinion: The plaintiff appeals from an order granting a new trial. The verdict and the judg ment were in favor of the plaintiff for $167.63. The defendant moved for a new trial upon one ground only, to wit, "misconduct of the jury." Section 296, subd. 2, Code Civil Proc. This section and subdivision are as follows: "The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved, for any of the following causes materially affecting the substantial rights of said party: * Second, misconduct of the jury; and whenever any one or more of the jurors shall have been induced to assent to any general or special verdict, or to a finding on any question or questions submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavits of any one or more of the jurors." In support of this motion the defendant filed an affidavit made by William J. McNamara and David Meiklejohn, two of the jurors, who deposed as follows: "That there was a disagreement and each of them, were induced to assent to said verdict on account of said proposition so made and carried out." The plaintiff, in opposing the motion, filed the affidavit of J. R. Silver, W. H. Young, Joel Crossman, and David Meiklejohn. These jurors, in their affidavit, present a somewhat different view of the conduct of the jury than that set out in the other affidavit. They say, in effect, that the jurors agreed that each one should set down an amount that he thought plaintiff should recover, and that the amount should be divided by 12; that each thereupon set down an amount, and that the total was divided by 12, and the quotient found to be $167.63; that, after this sum was found, the jurors discussed the matter as to whether that should be the amount of the verdict, and it was unanimously agreed that said sum should be the verdict, and it was thereupon inserted in the verdict, and the jurors were asked by one of their number if that should be their verdict, and they, or most of them, answered "Yes," and no objection was made by any juror. Thereupon the foreman signed the verdict, and it was returned into court. The motion for new trial was heard upon these affidavits, and by the court granted. The plaintiff appeals from this order. W. I. Lippencott, for appellant. Chas. R. Leonard, for respondent. DE WITT, J.. (after stating the facts.) The question upon this appeal is upon what the cases and books have called "quotient verdicts." See cases cited below and in the briefs of counsel. Verdicts arrived at by methods such as described in the McNamara affidavit in this case have been held bad when properly before courts on motion for new trial. But the facts vitiating such verdicts are the agreement by the jurors to go into the process of marking amounts, adding them, and dividing the same by 12, and the agreement that the result so obtained shall be the verdict, without further consideration; and the fact that such proceedings were taken by the jury in pursuance to such an agreement, and that the result so obtained was returned as the verdict. Thomp. & M. Juries, § 408 et seq., and numerous cases cited; Goodman v. Cody, 1 Wash. T. 329, 34 Amer. Rep. 815, note. On the other hand, it is held that a verdict reached after the quotient process having been had by the jury is not vicious "where the calculation is purely informal, for the purpose of ascertaining the sense of the jury, and every juror feels at liberty to accept, reject, or qualify the result, according to his convictions. Under such circumstances the jury may adopt as their verdict the exact quotient fcund, and it will be good." Thomp. & M. Juries, § 410, and cases cited and also cited in appellant's brief. The distinction between good verdicts and bad verdicts where the quotient process has been used is well stated in a very old case, as follows: "If the jurors previously agree to a particular mode of arriving at a verdict, and to abide by the contingent result at all events, without reserving to themselves the liberty of dissenting, such a proceeding would be improper; but if the means is adopted merely for the sake of arriving at a reasonable measure of damages, without binding the jurors by the result, it is not objection to the verdict." Dana v. Tucker, 4 Johns. 487. See, also, Hayne, New Trials & App. § 71. The question, then, in this case is, what was the nature of the resort to the quotient process by this jury? The affidavit of Meiklejohn and McNamara is clearly to the effect that the conduct of the jury was of the kind first above described,—the kind which the cases hold vitiates the verdict. The affidavit of Young and others tends to present the conduct of the jury as innocent, and being simply informal, for the purpose of obtaining the sense of the jurors. Meiklejohn signed both affidavits, but McNamara stands upon his affidavit, and did not sign the Young affidavit. Our statute says that whenever any one of the jurors shall have been induced to assent to a verdict by a resort to the determination of chance, such misconduct may be proved by the affidavit of such juror. Such conduct is so defined by the statute to be misconduct. So it appears from McNamara's affidavit that at least one juror-that is, himself-was induced to assent to this verdict by reason of the quotient proceeding; so it would seem that this, under the statute, is enough to vitiate the verdict. The affidavit of Young and others is to some extent contradictory of the McNamara-Meiklejohn affidavit, but that contradiction was resolved by the district court in favor of the McNamara affidavit. We are therefore of opinion that the order should be affirmed if this quotient proceeding is to be considered as a "resort to the determination of chance;" for that is the language of subdivision 2, § 296, Code Civil Proc. This rule is that the affidavit of a Juror may be taken to support his verdict, but not to attack it. Turner v. Water Co., 25 Cal. 398; Thomp. & M. Juries, § 440, and cases cited; Hayne, New Trials & App. §§ 73, 74. Section 296, Code Civil Proc., makes an exception to the rule, so that the affidavit of a juror may be taken to attack the verdict if the juror has assented to the verdict by reason of a resort to the determination of chance. The California supreme court, under the same statute as we now have, held long ago that this quotient proceeding was not a resort to the determination of chance. That court said: "But, independent of authority, it is manifest that there is no element of chance in such a verdict. Each juror marks a sum, which, in his judgment, represents the true amount of damages. Neither of these sums is the result of chance; on the contrary, each is the result of the judgment or will of the juror by whom it was marked. Neither is the aggregate of these sums, nor a quotient resulting from a division of the aggregate by twelve, the result of chance, but, on the contrary, the result of the most accurate of the sciences. Thus, from the commencement to the end of the process, no quantity which enters into the final result is determined by a resort to chance." Turner v. Water Co., 25 Cal. 403. But this case has received by no means a cordial approval by text writers and other courts. Thompson & Merriman on Juries refers to the case, and the language which we have just cited, and says: "This reasoning seems hardly conclusive. It proceeds upon the hypothesis that at the time the jurors consent to be bound by the result of the addition and division it is certain that each juror will mark down his estimate of the damages; hence this process of finding a verdict is as exact as the science of mathematics. But the contrary is the fact. The jurors consent that their verdict shall vary from abstract justice in that degree that each juror deviates from sound judgment. All the prejudices, whims, and caprices which sway a juror in his deliberations are given full play, and they measurably affect the final result. Nothing could well be more the sport of chance than a conclusion reached in this manner.' Thomp. & M. Juries, § 415. See, also, Warner 7. Robinson, 1 Root, 195; City of Pekin V. Winkel, 77 Ill. 56, 58; Parham v. Harney, 6 Smedes & M. 55. The California case also receives a severe criticism in Goodman v. Cody, 1 Wash. T. 329, 34 Amer. Rep. 808. We cite from that case as follows: "Among all the cases that have been cited in favor of and against the verdict in the case at bar being considered one got by chance determination we find none in which the meaning of the word 'chance' is discussed, and all the cases, in this respect, are unsatisfactory. The word 'chance' has not been adopted or defined as a law term, is not technical, and must be deemed used by the legislature in a popular sense. According to generally accepted and ordinary uses of the word, anything is said to have happened by chance to any one which was neither understandingly brought about by his act nor preestimated by his understanding. If any one move his arm inconsiderately, and by the movement unintentionally break a crystal vase, we say he did it by chance; for his intelligence did not, from step to step, estimate or direct the action to its result. Yet, although the result was a chance one, it was the certain, inevitable result of assured relative positions of the arm and the vase, and the muscular action, perhaps voluntary, of the former. Again, when a die is thrown, the position in which the die will fall is a necessary effect from well-known but unestimated causes. By the original position of the die, its size, form, and weight, the manipulation given it, the distance and velocity of the throw, the sort of surface it falls upon, and perhaps other things, the final position of the die is determined with mathematical certainty, and may, by any painstaking mathematician possessed of the elements of the problem, by the use of the most accurate of the sciences,' be calculated with infallible precision. Still we may say, and properly say, that the final position of the die is determined by chance; and by this we mean, not that the result of the throw was uncertain, or a consequence of unknown causes, but that it was produced by causes the efficient and proportionate operation of which were in fact by the person to whom it chanced neither estimated nor intelligently controlled for the accomplishment of the result. With the same propriety we speak of meeting by chance a person at a certain place at a certain time; and this, no matter how exactly we have precalculated and intended being ourselves at that place at the particular time, nor how exactly that person may have precalculated and intended being himself at the same place at the same time likewise, provided we, to whom the chance happens, did not precalculate nor consciously bring about the meeting then and there. From the popular use of the word 'chance' as illustrated in these examples it seems plain to us that a juror resorts to the determination of chance for a verdict whenever he resorts to any method of determination the steps and results of which are beyond his calculation, and unfollowed and unparticipated in by his understanding; and all the jurors resort to such a method when they resort to the method of average. With a verdict got, fairly as between the jurors, by such a method, the conclusion attained by the intelligence of any one juror never coincides, unless the average of the conclusions of all the jurors happens to be identical with his own; whereas, in a good verdict, every element of chance is eliminated by the fact that before the verdict is complete every intelligence on the jury, being first well apprised of the action of every other, has, by its own individual, conscious action, ratified and arrived at the same conclusion with every other. In a verdict got by the method of average every sum that goes to de velop the verdict is a chance sum as to each juror, save the sum that the juror himself sets down; and the verdict is not redeemed from being a chance verdict as to each juror, and therefore chance as to all, by the fact that each has contributed to it an element not of chance, any more than a dice throw would be redeemed from being chance by the fact that the throw was in part controlled by certain intentional motion of the dice box." See, also, the note to this case by the editor of the American Reports. See, also, Williams v. State, 15 Leá, 129; Parham v. Harney, 6 Smedes & M. 55; Wilson v. Berryman, 5 Cal. 44; Flood v. McClure, (Idaho,) 32 Pac. Rep. 254. With due respect to the California court, from which this court for many years has drawn much that was useful and satisfactory, we cannot but hold that the cases which have repudiated Turner v. Water Co. state the better and more reasonable doctrine. Nothing occurs to us which would add force to the criticisms above cited of the California case. We therefore hold that such resort to the quotient process as is set forth in McNamara's affidavit is a resort to the determination of chance. Since writing this opinion there have been published and come to our attention the cases of Dixon v. Pluns, 33 Pac. Rep. 268, and Weinburg v. Somps, Id. 341, in which the California supreme court desert the doc trine of Turner v. Water Co. The order granting the new trial in this case is affirmed. HARWOOD, J., concurs. WOODMAN v. CALKINS et al. (Supreme Court of Montana. Oct. 2, 1893.) BONDS DELIVERY-SIGNATURE OF PRINCIPAL. Since an indemnifying bond in attachment is a good bond of the sureties, without the signature of the principal who procures and delivers it, and the sureties' recourse against him is in no wise impaired by his failure to sign, they cannot defend a suit on such bond, as having signed it on condition that he should sign before delivery, and never intended nor consented that it should be delivered without his signature. Appeal from district court, Lewis and Clarke county; W. H. Hunt, Judge. Action by E. E. Woodman against R. M. Calkins and others. Judgment for plaintiff. Defendants appeal. Affirmed. The other facts fully appear in the following statement by DE WITT, J.: This action was commenced by plaintiff, as constable, against the defendants, who cuted by the sureties on his behalf, and re ceived the attached money from the officer, (which money was not subject to his attachment,) was liable therefor, without signing the undertaking, in an action by the officer, as well as to reimburse his sureties for whatever they were compelled to pay by reason of their engagement in said undertaking on behalf of the principal. Both the principal and sureties could have been sued in the same action, or, if the principal was not joined in the action brought by the officer against the sureties, they could have required the principal to be brought in and made party defendant in the action against the sureties, and have execution levied against the principal first. Hoskins v. White, 13 Mont., 32 Pac. Rep. 163; Wibaux v. Live-Stock Co., 9 Mont. 154, 22 Pac. Rep. 492. Thereby liability for the same damage would have been fastened upon the principal debtor, along with the sureties. No substantial were sureties on an undertaking to indemnify plaintiff, as constable, for holding property which he had seized on an attachment, and which was claimed by persons other than the defendant in the attachment suit. Archie Beaton brought suit against Patrick Leo, in the justice's court, to recover $74. A writ of attachment was issued in that action, and given to plaintiff, a specially deputed constable, for service. The constable levied upon the sum of $45.85 in the hands of P. J. Touhy. Wise & Goodkind served written notice upon the constable, claiming the moneys so levied upon as belonging to them, and demanding the delivery of the same to them. The constable informed the plaintiff in the action of that fact. Thereupon the defendants executed and delivered to plaintiff a written undertaking, which is attached to the complaint in this action. In consideration of that undertaking, the constable paid over the money so levied upon to the plaintiff in the action. The under-right of the sureties was affected by reason taking was to the effect that the parties thereto would save the plaintiff herein harmless from said claim of Wise & Goodkind. Afterwards Wise & Goodkind brought action against this plaintiff, and recovered judgment against him for the amount which they had so claimed as their property in the hands of said Touhy. Plaintiff now brings action against these defendants, sureties on said undertaking, for damages by reason of the judgment against him, which he had paid. The undertaking which these defendants gave named, as parties thereto, Archie Beaton as principal, and R. M. Calkins and J. S. Featherly as sureties. It was executed by the sureties only, and not by the principal. The above facts appear by the complaint in this action. The answer, among other things, set forth "that it [the undertaking or bond] was signed by these defendants as sureties, on the condition and understanding that he [said Beaton] should Isign it before it should be delivered; that said Beaton never signed the same, nor did any one in his behalf; and that these defendants never intended nor consented that it should be delivered without his signature." On the motion of plaintiff, the court rendered judgment in favor of plaintiff, upon the pleadings. Did the plea of defendants, as to the agreement in reference to the delivery of the undertaking, form an issue which should have been tried? If so, the judgment on the pleadings is contended by appellants to be error. David B. Carpenter, for appellants. R. R. Purcell, for respondent. HARWOOD, J. The foregoing statement of the case by Mr. Justice DE WITT is sufficient for the purposes of this decision. The judgment of the trial court, in our opinion, should be affirmed. Beaton, the principal, who procured the undertaking to be exe of the principal failing to sign said undertaking. Nor are they even inconvenienced thereby, for, had they made the principal a party defendant with them in the action against the sureties, the instant there were shown grounds for recovery of damages from the sureties for the default of the principal the same showing would have been ground for judgment against the principal obligee also. The defense alleged by the sureties that the undertaking “was signed by these defendants as sureties on condition and understanding" that the principal, Beaton, should sign it also, "and that these defendants never intended nor consented that it should be delivered without his signature," involves no fact or condition which, under the law, would have given them any right or remedy for reimbursement or contribution which they do not already possess. Therefore no sul stantial defense was set up by the answer in that respect, and the court ruled correctly in disregarding it. Wibaux v. Grinnell and Hoskins v. White, supra. The law, as expounded in the case of Ney v. Orr, 2 Mont. 559, when rightly considered, would lead to the same conclusion, because the pleading in the case at bar does not show that the officer who turned over the attached property to Beaton, on receiving said undertaking for his protection in so doing, was at all cognizant of the "condition and understanding" of the sureties that Beaton, the princi pal, should sign the undertaking before it was delivered, or that defendants "never intended that it should be delivered" without the signature of Beaton, principal. It has been held that such statutory undertakings are good and binding obligations of the sureties without the signature of the principal, who procures and delivers the same on his behalf. Therefore, so far as the undertaking shows on its face, the officer and his legal advisers were justified in accepting the nndertaking in the case at bar, as a good and valid obligation of the sureties, although 5 Mont. 549, 6 Pac. Rep. 347; Hedderick v. Pontet, 6 Mont. 348, 12 Pac. Rep. 765. The argument that, under all circumstances or in all engagements on obligations, it cannot be affirmed as a legal proposition that it would be of no material legal advantage to the sureties to have the principal's signature on the bond or undertaking, has no force in this case. The question in this case must be decided, and decided on the legal conditions involved in it. If the sureties have lost any material legal right by reason of the omission of the principal to sign this undertaking, (obligating himself to do as principal what the law obliges him to do without the undertaking,) it has not been pointed out or in any manner suggested in this case. It is well known that there are bonds and obligations whereby the liability of both principal and sureties arise from, and is founded upon, the instrument alone, and where the principal could neither be held liable directly to the obligee, nor collaterally as between him and the sureties, without his signature, but such is not the case at bar. And we do not perceive how general suggestions of doubts respecting those cases are applicable in deciding this, or will aid in correctly deciding such other cases when they arise. An order will be entered affirming the judgment of the trial court. DE WITT, J., (concurring.) I am not wholly satisfied that it is of absolutely no advantage to the sureties to have the principal's signature on the undertaking; nor am I satisfied that, under all circumstances, sufficient evidence of the liability of the signing sureties would also be alone proof of the liability of the nonsigning principal. I think cases might arise where the proof would have to go a pace further; but the suggested advantage to the sureties is probably not sufficiently substantial in this case to be noticed. I therefore concur in the affirmance. WILLIAM MERCANTILE CO. v. FUSSY. (Supreme Court of Montana. Oct. 9, 1893.) APPEAL NONSUIT-SETTLING STATEMENT. 1. A motion for a new trial is not needed to support an appeal from a judgment of nonsuit. 2. Though under Code Civil Proc. § 428, the service of the notice of appeal, and its filing with the bond prescribed, stays the trial court's proceedings upon the judgment or order appealed from, the court thereafter retains jurisdiction to settle and certify the statement on appeal. Appeal from district court, Missoula county; Theo. Brantley, Judge. Action by the William Mercantile Company against James H. Fussy on a debt. Judgment for defendant. Plaintiff appeals. On motion to strike statement on appeal from the files. Motion overruled. Druis & Crouch and Thos. H. Carter, for appellant. Beckford, Stiff & Hershey, for respondent. HARWOOD, J. The present consideration in this case relates to a motion interposed by respondent's counsel to eliminate from the record the statement on appeal on the grounds (1) that no motion for new trial was made in the court below by appellant; and (2) that the statement on appeal was settled and certified by the judge of the trial court after the notice of appeal had been served, and such notice with undertaking on appeal had been filed. The action was brought to enforce payment of an alleged debt. At the trial, when plaintiff rested in the introduction of testimony, defendant moved the court for nonsuit, on the ground that sufficient proof had not been offered by plaintiff to sustain the material allegations of his complaint, which motion, after argument and consideration by the court, was granted, and judgment entered accordingly in favor of defendant for his costs. From that judgment plaintiff appealed. The record filed in this court contains portions of the judgment roll pertinent to the review desired, and also a statement on appeal containing the motion for nonsuit, a statement of the evidence offered by plaintiff, and specifications of alleged error of the trial court in sustaining defendant's motion for nonsuit. 1. The first point urged by respondent's counsel as ground for striking out the statement on appeal implies that a review of an order granting a motion for nonsuit can only be had after motion for new trial has been presented to the trial court, and an appeal taken from the ruling thereon. We cannot sustain this objection. No cases are cited by respondent in support thereof, and this court has had occasion heretofore to examine the same question of practice, and find the authorities contrary to the contention of respondent. McKay v. Railway Co., 13 Mont. ―, 31 Pac. Rep. 999. 2. Nor do we find reason or authority for sustaining the second proposition urged by respondent, that the statement on appeal should be stricken from the record because the judge of the trial court certified and settled it after the notice and undertaking on appeal had been served and filed. Respondent's counsel contend that thereby the trial court lost jurisdiction of the case, and therefore the act of settling and certifying the statement on appeal was void. Where proper undertaking on appeal to stay proceedings has been given, the appeal stays proceedings of the trial court "upon the judgment or order appealed from," (Code Civil Proc. § 428,) but does not divest the trial court of power to settle and certify |